Playing FAST and loose with Digital Economy law

Is there anything guaranteed to squeal loader than an organisation that sees its self-interest threatened? It certainly explains the blustering from Federation Against Software Theft as exemplified by its press release it despatched earlier...

By
Maxwell Cooter
| Nov 12, 2010

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Is there anything guaranteed to squeal loader than an organisation that sees its self-interest threatened?

"Who actually makes the law - the Government or the
Judiciary?" it boldly asks - neatly avoiding the fact that one of the criticisms of the wretched Digital Economy Act was the fact that some of the bill had been drafted by industry lobbyists. But then, "Who actually makes the law - the Government or the lobbyists?" wouldn't have had quite the same effect.

The main point of the FAST release is that due prominence is being given to the views of BT and Talk Talk, the main instigators of the move to seek a judicial review. “It is staggering that this Act, bourn (sic) out of years of
consultation, of debate and of Parliamentary time, is now being challenged in
some last ditch attempt by the ISPs to ensure they are not hit financially,” says John Lovelock, chief executive of FAST.

Again, this ignores one of the central point of the campaigners against the Act - that it was precisely the lack of parliamentary time that prevented several important points being considered. The Act was passed during the fag-end of a parliament under the so-called "wash-up" process, where legislation is rushed through by MPs, many of whom were already considering the forthcoming general election.

Nowhere does the press release consider the most salient fact of all. It has not gone to judicial review because the courts want to be nice to BT or Talk Talk (although there is some truth is FAST's assertion that the repeal of the Act would be financially advantageous for the ISPs), nor because it supports the right of software pirates to download freely.

No, the High Court has ordered a judicial review because it believes that the way the Act has been drafted could conflict with European legislation on privacy. Now, at least the Act will get some proper scrutiny - and it should be pointed out that there's no guarantee that the judicial review will overturn the Act, indeed courts are often reluctant to overcome primary legislation. However, the tone of the FAST release suggests that it's the step before a free-for-all for downloading software.

I should make it clear that I personally don't use illegal software - nor have ever downloaded any software, music tracks or movies through peer-to-peer software - nor do I support illegal downloads. However, both the software industry and record companies have had nearly 20 years since the birth of the worldwide web to offer its customers a new purchasing model and have, only now, begun to respond. Users have seen the possibilities thrown up by technology and have started to exploit them.

The software industry has at least begun to look at its licensing models and its delivery process but that's mainly because it's had its hand forced by open source providers and the emergence of SaaS providers. The big record companies, I think, have ultimately lost the battle - they stuck in their ways for too long.

And that's really how the Digital Economy Act came about - a desperate last-ditch attempt to prop up a business model that was outmoded, As I wrote at the time, I thought it was fundamentally flawed and I still consider it to be so, not least for the way that the burden of proof has shifted so that defendants have to prove innocence rather than relying on being proved guilty. This is what it boils down to - not a question as to whether the judiciary or parliament sets legislation but whether a fundamental principle of British justice should be casually overturned on the say-so of industry lobbyists.